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Tuesday, August 5, 2014

Priming This Week's Windsor Appeals

The 6th District Circuit Court of Appeals will cast its decision in five Windsor appeals tomorrow, which in sum will affect the future of marriage equality measures in four states (Kentucky, Michigan, Ohio and Tennessee). In Ohio, the plaintiff couples are arguing that the refusal to recognize marriages performed legally in other states is unconstitutional.

U.S. v. Windsor was the landmark 2013 ruling that shot down the Defense Against Marriage Act. Three days after the decision, federal Judge Timothy Black in Ohio ruled that same-sex marriages performed out-of-state must be recognized here. "The question presented is whether a state can do what the federal government cannot — i.e., discriminate against same-sex couples simply because the majority of the voters don't like homosexuality,” Black wrote. Indeed, Windsor deemed discrimination against same-sex couples unconstitutional across the nationwide board; Ohio, however, still maintains its own constitutional amendment against them, voted on by the people in 2004.

Black writes elsewhere in the case that, for instance, Ohio recognizes marriages between first cousins if and when they are performed in states that recognize same. “How then can Ohio, especially given the historical status of Ohio law, single out same-sex marriages as ones it will not recognize? The short answer is that Ohio cannot… at least not under the circumstances here.”

Black had ordered the state of Ohio to record James Obergefell as the surviving spouse of John Arthur. The couple was married at a Glen Burnie, Md., airport in July 2013 after flying there solely for that purpose. Ohio, and Spring Grove Cemetery, where Arthur was to be buried, insisted on not recognizing the marriage.

The state appealed the Black decision, and here we are.

The timing of this ruling coinciding with the arrival of the internationally attended Gay Games in Cleveland provides an interesting social juxtaposition.

The Northeast Chapter of the American Constitutional Society will discuss the decisions and their implications at noon on Aug. 7 at the City Club.